DocketNumber: No. 5746.
Judges: Jenkins
Filed Date: 11/28/1917
Status: Precedential
Modified Date: 10/19/2024
The case was submitted to the jury upon special issues as follows:
"Was the deed introduced in evidence, dated December 26, 1898, and acknowledged January 3, 1899, executed by Rilla Hall upon the expressed condition and understanding that at the death of Moses Hall, Brack Hall should convey to Thos. Hall an undivided one-half interest in said land?
"If you have answered the preceding question in the affirmative, then, did the defendant, Brack Hall, accept said deed upon such condition ?
"At the time of, or immediately before, the execution of said deed by Rilla Hall, did the defendant, Brack Hall, promise and agree that upon the death of Moses Hall he would deed an undivided one-half interest in and to said land to Thos. Hall?
"If you have answered the preceding question in the affirmative, then, was such promise and agreement of the defendant, Brack Hall, made for the purpose of inducing said Rilla Hall to sign said deed? *Page 637
"(5) If you have answered the preceding question in the affirmative, then: (a) Did the said Brack Hall, at the time be made said promise and agreement, intend to carry out and fulfill the same? (b) Was the said Rilla Hall, by reason of said promise and agreement, induced to sign said deed?"
To each of the foregoing questions the jury answered, "Yes." The evidence is sufficient to sustain the findings of the jury.
While the bond does not distinctly name the obligees, it does so by reasonable intendment. State v. Wood,
2. Appellant assigns as error the refusal of the court to peremptorily instruct the jury to return a verdict in his favor, for the reason that the evidence did not clearly and satisfactorily establish a parol trust. This assignment is overruled for the reason that, if appellees' witness Walter Rector told the truth, such trust was clearly established. There is no uncertainty in his testimony as to the subject-matter, the parties, the interest of Rilla Hall to be conveyed to Brack Hall, nor as to the conditions upon which the same was conveyed. The credibility of the witness and the weight to be given to his testimony was for the jury.
3. Appellant contends that a parol trust cannot be grafted upon a written instrument by the testimony of one witness. Such is not the law in this state. Pierce v. Fort,
4. We do not think that there was a variance between the allegations and the proof as to who were the parties to said agreement. Moses Hall was a party to the divorce suit, but it is evident that it was not intended to allege that he was a party to the trust agreement. It is not claimed by appellees that there was any trust agreement as to the half of the land owned by him and by him conveyed to Brack Hall. No such variance was suggested upon the trial, either by objection to the evidence or by requested charge. Railway Co. v. Evans,
We do not think the court abused its discretion in refusing to postpone the case in order to obtain the testimony of the witness Edrington. He did not reside in Willlamson county, and appellant should have taken his deposition. Dowell v. Dergfleld,
We cannot say that the court abused its discretion in refusing to grant a new trial on account of the newly discovered testimony of the witness Miller.
The appellant having taken exclusive possession of the land, claiming the same adversely to appellees, and having pleaded not guilty and the statute of limitation, appellees were entitled to recover rent. But we think that appellees, under the allegations of their petition, were not entitled to recover rent at the rate of $3 per acre per annum, for the period since the death of Moses Hall, but only $3 per acre for such entire period. Appellees recovered rents for $625.50, when, under their pleadings, they were entitled to recover only $208.50. The excess rents recovered are $417. Appellees having expressed a willingness to remit such excess, the judgment of the trial court is here so reformed as that appellees shall recover of appellant only the sum of $208.50 rents, with interest thereon at the rate of 6 per cent. per annum from the date of the judgment in the trial court.
As thus reformed, the Judgment of the trial court is affirmed.
Reformed and affirmed.